The
accused was charged with four offences, including having care or control of a
motor vehicle while impaired contrary to s. 234(1) of theCriminal
Code. At trial, the police testified that the accused was
found in the driver's seat of a stolen automobile which, while under his
control, backed up a short distance. In defence, the accused testified that he
was so drunk he could not recall the evening's events. The trial judge
acquitted the accused on the four charges on the ground that the accused was so
intoxicated that he could not form the required intent to commit the
offences. The Crown appealed the acquittal on the s. 234(1) charge.
The Court of Appeal set aside the acquittal and entered a verdict of guilty.
This appeal is to determine (1) whether intoxication is a defence to a charge
of having care or control of a motor vehicle while impaired; (2) if the defence
is excluded, whether such exclusion infringes ss. 7 and 11(d) of theCanadian
Charter of Rights and Freedoms; and, if so, (3) whether the
infringement is justifiable under s. 1 of theCharter.

Held: The
appeal should be dismissed.

Per
Sopinka, Gonthier and McLachlin JJ.: The Crown's contention that drunkenness
could not serve as a defence under s. 234(1) of the Code because
of the presumption created by s. 237(1)(a) must
be rejected. Since the Crown chose not to assert the presumption at trial, but
rather relied exclusively on evidence that the accused had exercised care or
control under s. 234(1)(a), it cannot be
allowed to assert that presumption on appeal. To do so would result in the
accused being deprived of the opportunity to make the full answer and defence
that could have been made if it had been raised at trial. Intention to set the
vehicle in motion is relevant to s. 237(1)(a); it is
not relevant to s. 234(1).

The
defence of intoxication is excluded under s. 234(1) of the Code. In
enacting s. 234(1), Parliament has posited impairment as an essential
element of the offence and must be taken to have eliminated the availability of
a defence of lack of intent based on the same impairment which it has made
culpable. It is impossible to speak of a defence which also constitutes an
element of the offence. The exclusion of the defence of intoxication renders
irrelevant the general intent / specific intent issue.

Even
if the accused is too drunk to know that he is assuming care and control of the
motor vehicle, the exclusion of intoxication as a defence under s. 234(1)
does not constitute a limitation on the accused's right to make full answer and
defence under ss. 7 and 11(d) of theCharter, since
the mens rea of the offence lies not in the intention to assume care
or control of a motor vehicle, but in voluntarily becoming intoxicated. This interpretation
recognizes that intoxication is excluded as a defence to impaired driving since
it is the very gravamen of the offence. This state of the law was not changed
by this Court's decision in Toews.

Per Wilson
and L'Heureux‑Dubé JJ.: Impairment cannot be a defence to the offence of
having care or control of a motor vehicle while impaired under s. 234(1)
of theCriminal Code. Impairment, as opposed to non‑impairment,
cannot be at one and the same time an essential element of the offence and a defence
to the offence.

The
unavailability of the defence of intoxication in the context of s. 234(1)
does not constitute an infringement of ss. 7 and 11(d) of theCharter. Where
intoxication to the point of impairment is an essential element of an offence
of general intent, i.e. part of the actus reus, the denial of the
intoxication defence in relation to that offence does not give rise to a
constitutional violation. The section 234(1) offence is one of general
intent requiring only a minimal mens rea ‑‑ the
intent to assume care or control after the voluntary consumption of alcohol or
a drug. The requirement of impairment is an element of the actus reus.
No viable defence to a charge under s. 234(1) is foreclosed by the
section, and no conviction can take place under the section despite a
reasonable doubt as to the volitional nature of the accused's act. It is the
act of having care or control of a motor vehicle while impaired, and
not the simple act of having care or control, that must be volitional in order
that the actus reus of this offence be established. To
establish the actus reus, the Crown does not have to establish
an intent to do it, but merely that the accused was aware that he was doing
it. The conscious doing of an act encompasses the intention to do it and
constitutes the minimal mens rea for general intent offences.
When a person voluntarily consumes alcohol to the point of impairment and has
care or control of a motor vehicle while in that condition, there is no doubt
about the volitional nature of his act of becoming impaired. The accused's
impairment is the gravamen of the offence under s. 234(1), and it is this
which must be the result of an act of volition. Under the section, the act of
having care or control and the state of voluntary impairment are undoubtedly
required to be contemporaneous.

Crimes
in which intoxication is part of the actus reus,
therefore, are in a different category from crimes in which intoxication is
relevant to the mental element only. There is no unconstitutionality in the
creation of the former type of offence. However, if the unavailability of the
defence of intoxication should constitute an infringement of an accused's
constitutional rights, it would only be in cases of extreme intoxication
verging on automatism, and such an infringement would be justified under
s. 1 of theCharter.

Per La
Forest J.: Section 234(1) of the Code prohibits the act
of having care or control of a motor vehicle while the perpetrator of that act
is impaired. The mens rea of the offence is the intention to
assume care or control of the vehicle. Judicial construction also requires
that the impairment be voluntary. Since Parliament has made it an offence to
commit an act while impaired, it would be inconsistent for Parliament to have
also considered that impairment (including intoxication) could be relied on by
the defence.

Section
234(1) does not violate s. 7 or s. 11(d) of theCharter. With
respect to s. 11(d), the constitutionality of s. 234(1), qualified as
it is by s. 237(1) of the Code, has been accepted
by this Court in Whyte. With respect to s. 7, a person
can only come within the ambit of s. 234(1) if his intoxication is
voluntary. It follows that s. 234(1) will only be applied where the
assumption of the care or control of a vehicle while impaired can truly be said
to be the responsibility of the accused in an ultimate sense, even if there is
a question as to whether he was capable, because of intoxication, of forming
the requisite intent as of the moment when care or control was actually
assumed. Further, the mens rea requirement under s. 234(1) is
very low. It will seldom be the case that a person who has the care or control
of the motor vehicle be found so intoxicated as to have been incapable of
satisfying the very low mens rea requirement of s. 234(1). This
very low mental requirement is necessary if Parliament is to be able to create
effective offences respecting impaired driving. The creation of such offences
is obviously in the public interest, an interest which is encompassed in the
"principles of fundamental justice" mentioned in s. 7 of theCharter.

Per Lamer
C.J.: The offence of having care or control of a motor vehicle while impaired
contrary to s. 234(1) of the Code is one of general
intent requiring only a minimal mens rea. A general intent
offence is one in which the only intent involved relates solely to the performance
of the act in question with no further ulterior intent or purpose. The mental
element of the s. 234(1) offence ‑‑ the intent to assume care
or control after the voluntary consumption of alcohol or a drug ‑‑
is defined by referring directly to the actus reus.
No further intent is required apart from the intent to do the actus reus.
Since the offence is one of general intent, it follows that no defence of
intoxication can negate the mens rea of the offence. The question is
still open, however, as to whether intoxication giving rise to a state of
insanity or automatism could negate the mens rea of this
offence. There is no need to decide this issue in this case.

The
unavailability of the defence of intoxication for general intent offences is a
limit to the rights of an accused entrenched in ss. 7 and 11(d) of theCharter. This
defence is an important and valuable one for an accused in cases where, but for
a rule preventing him from resorting to it, such a defence would have succeeded
in raising a reasonable doubt as to voluntariness, an element essential to the
commission of the actus reus. The limit on the accused's
fundamental rights is the result of the judge‑made rule that a defence of
intoxication is unavailable or that any consideration of intoxication is made
irrelevant in cases of general intent offences. In the context of
drinking and driving offences, such a limit is demonstrably justifiable under
s. 1 of theCharter. First, the objective of taking away
the defence of intoxication is of sufficient importance to justify restricting
the rights contained in ss. 7 and 11(d). The
measure is part of the scheme set up by Parliament to protect the security and
property of the public and is aimed at securing the conviction of the impaired
persons who are in care or control of a motor vehicle. Second, the measure is
proportional to the ends s. 234(1)(a) is
designed to attain. There is a rational connection between the restriction on
the fundamental rights and the objective. The unavailability of the defence of
intoxication is logical and necessary to suppress all the effects of
intoxication on the road. Further, the measure does not represent an
overkill. The rule does not impose a conviction on an intoxicated person found
to have care or control but who is completely blameless. Involuntary
intoxication is left unpunished as is also an involuntary taking, care, or
control, due to factors other than intoxication.

United
Kingdom. Home Office. Department of Health and Social Security. Report of
the Committee on Mentally Abnormal Offenders, Cmnd 6244.
London: H.M.S.O., 1975.

APPEAL
from a judgment of the Ontario Court of Appeal (1986), 30 C.C.C. (3d) 553,
45 M.V.R. 28, 18 O.A.C. 31, allowing the Crown's appeal from the accused's
acquittal on a charge of having care or control of a motor vehicle while
impaired contrary to s. 234 of theCriminal Code.
Appeal dismissed.

Melvyn
Green, for the appellant.

Jeff
Casey and Susan Chapman, for the
respondent.

//Lamer C.J.//

The
following are the reasons delivered by

CHIEF JUSTICE LAMER -- This
case raises the issue of whether someone accused pursuant to s. 234 (now
s. 253) of the Criminal Code, R.S.C. 1970, c.
C-34, of having care or control of a motor vehicle while impaired, and to whom
s. 237 (now s. 258) of theCriminal Code applies, can raise
a defence of intoxication.

I - The
Facts

In
the early hours of April 27, 1985, in the Township of Michipicoten, Ontario, an
automobile was stolen by two unidentified persons. About twenty minutes later,
the police located the vehicle and found the appellant sitting in the driver's
seat and another person sitting beside him. The investigating officer was not
sure whether the vehicle was in motion when he located it. However, he
testified that while he got out of the police car and approached the vehicle,
he saw the appellant gesturing as if putting it in reverse and, in effect, the
vehicle moved back about one foot. The key was in the ignition and the
ignition was on. The passenger was found in possession of an additional set of
keys in his pocket. The appellant and the passenger were immediately arrested
by the police.

It
is common ground that the accused had been drinking heavily in the hours which
preceded his arrest. He testified that he had no recollection of any of the
events that took place between midnight and the moment he was awakened in his
cell, late that morning.

The
appellant was acquitted of the four counts of which he was charged: robbery
contrary to s. 303 of the Code, theft of the car contrary to s. 294(a) of the Code,
possession of the car contrary to s. 312(1)(a) of the Code and
care or control of a motor vehicle while impaired contrary to s. 234 of the Code. The
Crown has only appealed the acquittal on the s. 234 charge, that is, having
care or control of a motor vehicle while impaired.

II - Judgments
in the Courts Below

The
trial judge found that the appellant was very intoxicated. He acquitted the
appellant on the four counts as he was of the opinion that his degree of
intoxication prevented him from forming the required mental element in respect
of the offences with which he was charged. The trial judge did not however
proceed to an analysis of the elements of the offence of having care or control
of a vehicle while impaired and did not consequently relate the effect of the
defence of intoxication to any of these elements.

The
sole ground of appeal raised by the Crown before the Ontario Court of Appeal
was that a defence of self-induced intoxication on a charge of care or control
of a motor vehicle while impaired is not available to an accused. The Court of
Appeal held that intention to drive is not an essential element of the offence
under s. 234. The Crown need only prove that the accused had care or control of
a motor vehicle while impaired. The offence was regarded as a general intent
offence, for which the Crown need not prove that the assumption of care or
control was motivated by any particular purpose. It further held not only that
voluntary intoxication is not a defence to a crime of general intent but also
that it can form the mens rea of such an offence. The Court of
Appeal accordingly allowed the appeal, set aside the acquittal and entered a
verdict of guilty: (1986), 30 C.C.C. (3d) 533, 45 M.V.R. 28, 18
O.A.C. 31.

III - The
Relevant Legislation

This
appeal involves s. 234 of the Code which creates the
offence of having care or control of a motor vehicle while impaired and the
presumption created under s. 237 of the Code. These
sections read as follows:

234. (1) Every one who, while his ability
to drive a motor vehicle is impaired by alcohol or a drug, drives a motor
vehicle or has the care or control of a motor vehicle, whether it is in motion
or not, is guilty of an indictable offence or an offence punishable on summary
conviction and is liable

(a) for a first offence, to a fine of not more than two
thousand dollars and not less than fifty dollars or to imprisonment for six
months or to both;

(b) for a second offence, to imprisonment for not more
than one year and not less than fourteen days; and

(c) for
each subsequent offence, to imprisonment for not more than two years and not
less than three months.

(a) where
it is proved that the accused occupied the seat ordinarily occupied by the
driver of a motor vehicle, he shall be deemed to have had the care or control
of the vehicle unless he establishes that he did not enter or mount the vehicle
for the purpose of setting it in motion;

IV - Analysis

The
appellant submits that the crime of having care or control of a motor vehicle
while impaired is a crime of specific intent in the sense that s. 234(1)(a)
requires a further purpose to the mere intent to "use ... the car, its
fittings or equipment". He argues that this specific intent is the intent
to use the car, its fittings or equipment for the purpose of operating the car
as a motor vehicle, as opposed to the intent to use the car as a bedroom, for example.
The importance of classifying a crime as one of specific rather than general
intent resides in the availability of the defence of intoxication for specific
intent crimes.

General or Specific Intent Crimes and the Availability of a Defence of
Intoxication

The
difficult task of formulating a meaningful distinction between specific intent
and general intent crimes was addressed by this Court in R. v.
George, [1960] S.C.R. 871, where Fauteux J. explained at p.
877:

In
considering the question of mens rea, a distinction is to be made between
(i) intention as applied to acts considered in relation to their purposes and
(ii) intention as applied to acts considered apart from their purposes. A
general intent attending the commission of an act is, in some cases, the only
intent required to constitute the crime while, in others, there must be, in
addition to that general intent, a specific intent attending the purpose for
the commission of the act.

Recently,
in R. v. Bernard, [1988] 2 S.C.R. 833, a majority of this Court
reaffirmed the desirability of keeping the distinction between specific intent
crimes and general intent crimes as well as the consequences that flow from it
with regards to the availability of a defence of intoxication to negate the mens rea.
McIntyre J. gave the following explanation of the distinction at p. 863:

The
general intent offence is one in which the only intent involved relates solely
to the performance of the act in question with no further ulterior intent or
purpose.... A specific intent offence is one which involves the performance of
the actus reus, coupled with an intent or purpose going beyond the
mere performance of the questioned act.

In
the same decision, Wilson J. was of the view that only a minimal intent was
involved in proving the mens rea of general intent crimes and that in
these cases, "intentional and voluntary" had to be opposed to
"accidental or involuntary" (p. 883).

It
is of no use here to repeat the thorough analysis made by some of the members
of this Court in Bernard as regards the desirability of the
distinction, the fact being that Bernard reaffirms it as it
reaffirms the consequences that flow from it. The question, therefore, simply
becomes whether s. 234(1)(a) is an offence of specific intent or general intent.

That
the intention to set a vehicle in motion is not an element of the offence of
having care or control of a motor vehicle while one's ability to drive is
impaired has been affirmed in Ford v. The Queen, [1982]
1 S.C.R. 231. Proof of lack of intent to set the motor vehicle in motion is
only relevant to prevent the Crown from benefiting from the presumption of s.
237(1)(a). This Court has recently reaffirmed these findings in R. v.
Toews, [1985] 2 S.C.R. 119, and R. v.
Whyte, [1988] 2 S.C.R. 3.

The mens rea and the actus reus of the
offence of care or control of a motor vehicle while one's ability to drive was
impaired were examined in Toews and the following conclusion was
reached at p. 124:

Similarly,
the mens rea for having care or control of a motor vehicle is the
intent to assume care or control after the voluntary consumption of alcohol
or a drug. The actus reus is the act of assumption of care
or control when the voluntary consumption of alcohol or a drug has impaired
the ability to drive. [Emphasis added.]

The
mental element of this offence is therefore defined by referring directly to
the actus reus. No further intent is required apart from the intent
to do the actus reus which strongly indicates that this
offence falls within the category of general intent offences. It has also been
stated by Dickson C.J., speaking for the Court in Whyte, that
the intent required under this offence is a minimal one. That case was dealing
with the constitutionality of the presumption of care or control contained in
s. 237(1)(a) considered in the light of s. 11(d) in theCanadian
Charter of Rights and Freedoms. The Chief Justice stated at p. 22:

In my
view, we must recognize that Parliament was faced with a difficult task in
defining drinking and driving offences. The very fact that consumption of
alcohol is an element of these offences renders problematic the element of
intention. Justice precludes undue reliance upon strict or absolute
liability. Social protection precludes undue emphasis upon the mental element
to these offences. Parliament has decided to define the offence in terms
of "care or control". As I have already noted, this Court has held
that the Crown need not prove that the accused had an intention to drive or to
set the vehicle in motion in order to secure a conviction for "care or
control". The mens rea
requirement for the offence of care or control is a minimal one and it
has not been argued here that this constitutes a departure from the
requirements of s. 7 or s. 11(d) of theCharter.
[Emphasis added.]

Furthermore,
the submission of the appellant whereby the intent of the offence should be
defined as the intent to use the car, its fittings or equipment for the purpose
of operating the car as a motor vehicle runs counter to the clear pronouncement
of this Court to the effect that the intention to set it in motion is not an
element of this offence. Using a motor vehicle as a motor vehicle is another
way of saying using a motor vehicle to set it in motion, since the main
characteristic that distinguishes a motor vehicle from other objects or places
is the ability to use it for transportation, that is, to set it in motion.
Such a proposition would be the equivalent of accepting that the appellant must
have had the intention to set the motor vehicle in motion in order to contravene
to s. 234(1)(a), a proposition that was rejected in Ford.

The
law, however, is not deprived of any flexibility and does not go so far as to
punish the mere presence of an individual whose ability to drive is impaired in
a motor vehicle. In fact, Toews stands for the proposition that when
a person uses a vehicle in a way that involves no risk of putting it in motion
so that it could become dangerous, the courts should find that the actus reus was not
present. In that case, the accused was acquitted because he was sleeping on
the front seat, in a sleeping bag with his head near the passenger's door. The
Court did not base its decision on the absence of mens rea that
would derive from the accused's intent to use the vehicle for another purpose
than to use it as a motor vehicle, that is to use it as a bedroom. Rather, it
held at p. 127:

It has
not been shown ... that the respondent performed any acts of care or control
and he has therefore not performed the actus reus.

For
these reasons, I am of the view that the offence of having care or control of a
motor vehicle while one's ability to drive is impaired is a general intent
offence. It follows, as was decided by a majority of this Court in Bernard, that
no defence of intoxication can negate the mens rea of this
offence, although the question is still open as to whether intoxication giving
rise to a state of insanity or automatism could achieve such a result.

The
trial judge found that the appellant was very intoxicated. However, the
appellant did not prove, on a balance of probabilities, that his intoxication
was so great as to constitute insanity or automatism, nor was a state of
insanity or automatism found by any of the judges in the courts below. On the
facts of this case, I see no need to address the issue concerning the relevance
of intoxication to negate the mens rea where such
intoxication verges on insanity or automatism. I would therefore conclude that
the first submission of the appellant must fail.

This
leaves us with the question as to whether the principle that a person accused
of having breached s. 234(1)(a) cannot raise
intoxication either as a defence or as a factor to be considered in deciding if
all the elements constituting the offence are present, is contrary to theCharter. More
particularly, the appellant argues that this rule infringes ss. 7 and 11(d) of theCharter. In
all fairness to the judge and justices of the courts below who did not address
this issue, I must point out that it seems to have been argued, as an
afterthought and for the first time, only before this Court. As a result, we
have not had the benefit of hearing full argument on the point, nor have we had
the benefit of the views of the judge and justices in the courts below. In my view,
however, the constitutional validity of denying a defence of intoxication, or
denying any relevance to intoxication, in considering the commission of the
offence defined in s. 234(1)(a) is an important
question that this Court should address now.

The
legal implication of classifying an offence as a general intent offence
combined with the removal of the defence of intoxication when intoxication is
self-induced will, in certain circumstances, leave the trier of fact with no
choice but to convict the accused even though there was a reasonable doubt
whether, due to intoxication, the accused's act was voluntary. By the same
token, the Crown would be relieved from proving beyond a reasonable doubt the actus reus of a
general intent offence since a reasonable doubt as to voluntariness arising
from intoxication would be discarded from consideration from the outset. I am
of the view that the fact that a conviction may follow notwithstanding the
existence of a reasonable doubt as to voluntariness, an element essential to
the commission of the actus reus, is a limit to the
rights guaranteed to the accused by ss. 7 and 11(d) of theCharter.

McIntyre
J. examined in Bernard whether the unavailability of the
defence of intoxication infringes ss. 7 and 11(d) of theCharter. He
was of the opinion that excluding the defence of intoxication for all general
intent offences did not offend either section. With respect, I cannot agree.

Wilson
J., in the same case, also addressed theCharter issues
involved by stating that no defence of intoxication is available for general
intent offences. She was of the opinion that evidence of intoxication should
go to the trier of fact only in cases where there is evidence of extreme
intoxication involving an absence of awareness akin to a state of insanity or
automatism because only in such cases would such evidence of intoxication be
capable of raising a reasonable doubt as to the existence of the minimal intent
required for general intent offences.

With
respect for the contrary view, I find it difficult to deny generally a defence
of intoxication on the grounds that, in fact, only in very rare situations will
it succeed in actually raising a reasonable doubt in the mind of the trier of
fact. Denying the availability of a defence of intoxication in the cases where
such a defence would have failed anyway in raising a reasonable doubt as to an
element of the offence is of no real and practical importance to an accused.
However, it is an important and valuable defence for the accused in cases
where, but for a rule preventing the accused from resorting to the defence of
intoxication, such a defence would have succeeded in raising a reasonable doubt
as to the existence of an element of the offence.

In
cases where a reasonable doubt would have been raised as to the existence of
the mental element particular to the offence in question, McIntyre J. in Bernard would
have substituted for it the blameworthy mental state that springs from
voluntary self-intoxication. However, in cases where resort to the substituted mens rea was
necessary for blameworthiness to be proven, Wilson J. decided to leave the
question open as to the constitutional validity of denying a defence of
intoxication. Indeed, she stated at p. 889:

It
is, in my view, not strictly necessary in this case to address the
constitutionality of substituting self-induced intoxication as the mens rea for the
minimal mens rea requirements of general intent offences. This issue
would, in my view, only arise in those rare cases in which the intoxication is
extreme enough to raise doubts as to the existence of the minimal intent which
characterizes conscious and volitional conduct.

My
colleague, in obiter, adds the following comment as regards
whether by using a substituted form of mens reas. 11(d) of theCharter would
be infringed (at p. 890):

In my
tentative view, it is unlikely that in those cases in which it is necessary to
resort to self-induced intoxication as the substituted element for the minimal
intent, proof of the substituted element will "inexorably" lead to
the conclusion that the essential element of the minimal intent existed at the
time the criminal act was committed. But I prefer to leave this question open
as it is unnecessary to decide it in order to dispose of this appeal.

I
conclude, therefore, that only a minority in Bernard
expressed a conclusive opinion as to the constitutionality of the rule denying
a defence of intoxication for all general intent offences. In cases where the
intoxication would succeed in raising a reasonable doubt as to an element of a
general intent offence, the question is, in my opinion, still open for this
Court to decide.

I am
of the view, as indicated above, that the unavailability of the defence of
intoxication for general intent offences as interpreted by the courts is a
limit on the rights of an accused entrenched in ss. 7 and 11(d), and
that such a restriction can only stand if it survives a s. 1 analysis.

We
are not in a position to, nor should we in any event, proceed to a s. 1
analysis of the restriction for all general intent offences. Of course, if
this were done and the restriction were found to be "demonstrably
justified", this would end the matter. But I think it preferable to
proceed on a section by section approach, this case putting in issue the
restriction as regards s. 234.

Therefore,
for the purpose of this analysis I will assume, without deciding that, as a
general rule, s. 1 would not save the limit on fundamental rights that is the
result of the judge-made rule that a defence of intoxication is unavailable or
that any consideration of intoxication is made irrelevant in cases of general
intent offences. That being deemed, I am nonetheless of the opinion that, in
the context of drinking and driving offences, such a limit can be demonstrably
justified in a free and democratic society.

Any
analysis as to whether a restriction to rights guaranteed by ss. 7 and 11(d) is
salvaged by s. 1 of theCharter involves the application of the
decision of this Court in R. v. Oakes, [1986] 1 S.C.R.
103. Unfortunately, the parties did not adduce any evidence nor did they
address s. 1. However, I think that we can take judicial notice of the danger
and disastrous results when drinking and driving are combined.

The
first criterion stated in Oakes is that the objective of the measure
that restricts a guaranteed right or freedom must be "of sufficient
importance to warrant overriding a constitutionally protected right or
freedom" (p. 138). It is important, in a s. 1 analysis, to identify with
precision the measure which is the object of scrutiny and to focus on that
measure to determine if it is justified "in a free and democratic
society". The measure that is under consideration here is the taking away
of the defence of intoxication and the irrelevancy of intoxication as a factor
to be considered in determining whether all the elements of s. 234(1)(a) are
present. We are not concerned in the present case with the testing of s.
234(1)(a) under s. 1 of theCharter.

We
must therefore start by identifying the objective of this measure. Taking away
the defence of intoxication is designed to secure the conviction of those
individuals who would be so intoxicated as to be able to raise a reasonable
doubt as to the voluntariness of having care or control. In other words, this
measure aims at ensuring that the most drunk will be convicted. The object of
the unavailability of the defence of intoxication is that of ensuring that no
one will escape conviction who is found impaired and who has taken care or control
of a motor vehicle as long as impairment was the result of voluntary
intoxication.

The
next step is to assess whether such objective is of sufficient importance to
warrant overriding the rights protected in ss. 7 and 11(d). The
measure is part of the scheme set up by Parliament to protect the security and
property of the public that are put to risk by persons whose ability to drive
is impaired but who are, in any event, in care or control of a motor vehicle.
In Saunders v. The Queen, [1967] S.C.R. 284, this Court held
(at p. 289):

Obviously,
every one agrees that the true object of the provisions of ss. 222 and 223 [a
prior version of the drinking and driving or care or control offences] is to
cope with and protect the person and the property from the danger which is
inherent in the driving, care or control of a motor vehicle
by anyone who is intoxicated or under the influence of a drug or whose ability
to drive is impaired by alcohol or a drug.

The
social concern, common to the "drinking and driving" family of
offences, is the severe risk to life, security or property of the public that
is posed by persons whose ability to drive is impaired, but who are
nevertheless in control of a motor vehicle. This concern was recognised by
this Court to be of great importance in Curr v. The Queen, [1972]
S.C.R. 889, R. v. Hufsky, [1988] 1 S.C.R.
621, R. v. Thomsen, [1988] 1 S.C.R. 640, and in Whyte, supra, at p.
27. No one will dispute the importance of the objective of the offences
themselves that will secure conviction of the impaired persons who are in care
or control, even in cases where impairment is not all that great. A
fortiori, a measure ensuring that the most drunk, and by
implication the ones representing the greatest threat to public safety, be convicted
is of sufficient importance to justify restricting the rights contained in ss.
7 and 11(d). In my view, the first criterion of the Oakes test is
therefore met.

The
second criterion stated in Oakes requires that the means chosen to
attain this objective be proportional or appropriate to these ends. A measure
will be said to satisfy this criterion when it is rationally connected with the
objective it is designed to achieve, when it impairs the fundamental right or
freedom which it limits as little as possible, and when there is a
proportionality between the effects of the measure limiting such right or
freedom and the objective identified as having sufficient importance.

A
rational connection must therefore be found between the restriction on the
fundamental right, namely the removal of the defence of intoxication, and the
objective set out above. Obviously, convicting all drivers whose ability to
drive is impaired, whether they voluntarily took care or control of the motor
vehicle or not, is rationally connected with the objective of ensuring that
impaired drivers are off the road whatever their degree of intoxication. As
part of the more general scheme put in place by Parliament to deal with the
problem of drinking and driving, the availability of the defence of
intoxication would defeat its purpose. Intoxication, the source of danger s.
234 is designed to address, must be proved beyond a reasonable doubt by the
Crown. By the same token, however, it could defeat the Crown's case by establishing
beyond a reasonable doubt a valid defence. In cases of serious intoxication,
the Crown would be confronted with an unbearable burden. The unavailability of
the defence of intoxication is a logical and necessary feature to the
achievement of suppressing all the effects of intoxication on the road. I
therefore conclude that the removal of the defence of intoxication satisfies
the first aspect of the proportionality criterion.

I am
also of the view that the unavailability of the defence of intoxication does
not represent an overkill, in terms of the limit on the rights in question,
especially in the light of the very serious problem caused by the
"drinking and driving" family of offences. The rule does not impose
a conviction on an intoxicated person found to have care and control but who is
completely blameless: involuntary intoxication is left unpunished as is also
an involuntary taking, care, or control, due to factors other than
intoxication. On the other hand, Parliament had to respond to the serious
threat that is posed by persons in care or control of a motor vehicle while
their ability to drive is impaired. Such persons can reasonably be held
responsible when they voluntarily consume intoxicating substances and risk
putting the public safety in danger by assuming care or control of a motor
vehicle, whether they intended to assume care or control or whether
intoxication did not allow them to realize what they were doing. By
voluntarily taking the first drink, an individual can reasonably be held to
have assumed the risk that intoxication would make him or her do what he or she
otherwise would not normally do with a clear mind. I therefore conclude that
the unavailability of the defence of intoxication is a measure that is
proportional to the ends s. 234(1)(a) is designed to
attain.

V - Conclusion

I
would therefore dismiss this appeal.

//Wilson J.//

The
reasons of Wilson and L'Heureux-Dubé JJ. were delivered by

WILSON J. - I
have had the benefit of the reasons of my colleague Chief Justice Lamer in this
appeal and I am of the view that impairment, as opposed to non-impairment,
cannot be a defence to the offence under s. 234 of the Criminal
Code, R.S.C. 1970, c. C-34, of having care or control of a
motor vehicle while impaired. Impairment cannot be at one and the same time an
essential element of the offence and a defence to the offence.

Does
the fact that Parliament has foreclosed the availability of this defence give
rise to a constitutional violation? It is on this point that my reasons
diverge from those of my colleague. In my view, the unavailability of the
defence of intoxication in the context of s. 234 does not give rise to an
infringement of an accused's ss. 7 and 11(d)
rights.

In R. v.
Bernard, [1988] 2 S.C.R. 833, this Court held that denying the
defence of intoxication in the case of an offence of general intent does not
violate theCanadian Charter of Rights and Freedoms at
least in so far as cases not involving "substituted" mens rea are
concerned. Accordingly, if Lamer C.J.'s reasons in this case are not confined
to "substituted" mens rea cases, which they do not appear to
be, it would appear that he is reopening the issue in Bernard. While
this is, of course, perfectly open to him to do, I tend to the view that Bernard was
correctly decided. I remain of the view that intoxication falling short of
insanity or automatism is not a defence to crimes of general intent. The
defence of intoxication is, of course, available in the case of crimes of
specific intent.

Bernard did not
deal with the question whether a constitutional infringement takes place when
Parliament has made impairment an ingredient of the offence. It dealt only
with the availability of the defence of intoxication to negate mens rea in the
context of the common law distinction between crimes of general and crimes of
specific intent. In that case, Dickson C.J. (with whom Lamer J. (as he then
was) concurred) expressly exempted from his comments regarding the
unconstitutionality of the denial of the intoxication defence in relation to
crimes of general intent those offences in which intoxication is an element of
the offence. He said at p. 842:

I
wish to make clear at the outset, however, that nothing in these reasons is
intended to apply with respect to the quite distinct issues raised by offences,
such as driving while impaired, where intoxication or the consumption of
alcohol is itself an ingredient of the offence. The mens rea of such
offences can be left for consideration another day.

That
other day arrived when this appeal was heard.

It
seems to me that the rationale behind Bernard is not
readily transferable to the situation where Parliament has made intoxication to
the point of impairment an essential ingredient of the offence. I do not believe
for the reasons which follow that this gives rise to a constitutional
violation.

Intoxication
has traditionally been viewed as relevant to mens rea.
Certainly this was so in Bernard where, as already mentioned, it was
held that the defence of intoxication was available only in relation to crimes
of specific intent and not to crimes of general intent. The rationale in
support of this finding was that intoxication could affect a person's ability
to foresee the consequences of an act, which is a requirement for crimes of
specific intent, but that, generally speaking, intoxication could not deprive a
person of the ability to know that he or she was committing the act, which is
the minimal requirement for crimes of general intent.

This
traditional view stems from an appreciation of the level of intoxication
required to support the defence. The same level of intoxication may operate to
negate the specific intent necessary to ground conviction for some offences but
be insufficient to negate the general intent required for others. This does
not mean, however, that more severe levels of intoxication might not in some
circumstances raise a doubt as to whether that general intent motivated an
accused's acts. The common law disallowed the defence of drunkenness in such
circumstances, I believe, on policy grounds, because to allow it would result
in the danger of average degrees of intoxication being considered as a defence
to a great many crimes.

Voluntariness
is an aspect of the actus reus rather than the mens rea of an
offence. It is a minimal requirement of the criminal law that acts in order to
be considered criminal must be conscious acts. The same act to outward
appearance may be either an act of volition or an accident or mistake. Yet the
legal implications are quite different. In a sense it may seem artificial to
distinguish between volition and intention and say that the former pertains to
the actus reus and the latter to the mens rea of the
offence. It might appear to make more sense to say that the conscious doing of
an act encompasses the intention to do it and therefore constitutes the minimal mens rea for
general intent offences. If the act was accidental it lacked volition and
therefore the actus reus was not established. By the same
token it also lacked intention so that the mens rea was not
established. In either case it cannot meet the tests for criminality.

The
criminal law does, however, distinguish between acts that are purely physical
and acts that are accompanied by mental processes and it treats acts of
volition as purely physical. To establish the actus reus the
Crown does not have to establish an intent to do the act, merely that the
accused was aware that he was doing it. In other words, the criminal law
contemplates that while acts which are intentional must necessarily be
volitional, acts which are volitional need not necessarily be intentional. The
classic example is the woman who shoots a supposed intruder only to discover
later that the intruder was her husband who had returned home earlier than
expected. Her act was unquestionably an act of volition but it was prompted by
mistake. She had no intention to shoot her husband.

I
agree with Lamer C.J. that the offence under s. 234 of the Code is an
offence of general intent requiring only a minimal mens rea. I
disagree with him, however, that a conviction may take place under the section
despite a reasonable doubt as to the volitional nature of the accused's act.
It is the act of having care or control of a motor vehicle while impaired
and not the simple act of having care or control that must be volitional in
order that the actus reus of this offence be established. I
agree with my colleague that if it were the simple act of having care or
control that we were concerned about, such an act might be shown not to be
volitional if the accused was intoxicated to a very high degree. He might
then, due to the effects of alcohol, truly not know what he was doing. But
when a person voluntarily consumes alcohol to the point of impairment and has
care or control of a motor vehicle while in that condition, it seems to me that
there can be no doubt about the volitional nature of his or her act of becoming
impaired. We are talking about self-induced intoxication to the point of
impairment. It cannot be open to an accused to argue that due to his
impairment he was not aware of being impaired when he had care or control of
the motor vehicle. The accused's impairment is the gravamen of the offence
under s. 234(1). And it is this which must, in my opinion, be the result
of an act of volition. Nor is there any need to resort to the dubious concept
of "substituted" mens rea in such circumstances. The act of
having care or control and the state of voluntary impairment are undoubtedly
required to be contemporaneous under this section.

It
seems to me, moreover, that if my colleague is speaking of impairment to an
extent that could deprive the accused's act of its volitional character, he
must be speaking of a state of extreme impairment verging on automatism and, at
most, the section would violate theCharter only to the extent
it deprived an accused in that condition of the defence of lack of volition.
This would be consistent with the view I expressed in Bernard that
intoxication to that extreme degree could also negate the required minimal
mental element.

The
problem at common law with denying the defence of intoxication for all crimes
of general intent is that it deprives an accused of the opportunity to raise a
reasonable doubt as to the presence of the mental element of the offence.
According to this Court's reasons in R. v. Whyte, [1988]
2 S.C.R. 3, such a denial amounts to a violation of s. 11(d) of theCharter. In Bernard the actus reus was an
assault of a sexual nature causing bodily harm. Intoxication was relevant only
to the presence or absence of mens rea, i.e. the intention
to commit the assault. I expressed serious reservations in that case that
self-induced intoxication can be substituted for the intent required to be
present at the time the offence is committed. I did not have to reach a
conclusion on that question since I found that the required mens rea for
sexual assault could readily be established by inference from the accused's
act. In other circumstances, however, an accused may be intoxicated to such a
degree that he or she is incapable of forming even the minimal intent to do the
act, i.e. where he or she is in a mental state akin to insanity or automatism.
I concluded that it would only be in those circumstances and not in the case of
ordinary drunkenness that the denial of the defence of intoxication could
result in an infringement of an accused's constitutional rights.

The
question whether the requirement of impairment in s. 234 of the Code is an
aspect of the actus reus of the offence or the mens rea seems
to me to be relevant to any determination of the section's constitutionality.
I do not find that my colleague has taken an unequivocal position on this and
it may be important in light of the existing jurisprudence.

The mens rea and actus reus of the
offence of having care or control of a motor vehicle while impaired were defined
by this Court in R. v. Toews, [1985] 2 S.C.R.
119, as follows at p. 124:

. . .
the mens rea for having care or control of a motor vehicle is the
intent to assume care or control after the voluntary consumption of alcohol or
a drug. The actus reus is the act of assumption of care or
control when the voluntary consumption of alcohol or a drug has impaired the
ability to drive.

By this
definition the mental element of the offence under s. 234(1) includes the
voluntary consumption of alcohol but the actus reus
requires the voluntary consumption of alcohol to the point of impairment.
The distinction appears to make sense in that alcohol consumption to the point
of impairment could well negate the intent to have care or control of the motor
vehicle and result in the absence of mens rea whereas
simple consumption might not. The actus reus requires impairment
by alcohol and not just the prior consumption of alcohol. By making the
requirement of impairment an element of the actus reus rather
than the mens rea of the offence Parliament has avoided
the vicious circle which would otherwise be inherent in the offence.

Given
the way in which Parliament has framed s. 234 of the Code, it
seems to me to be an open question whether or not a constitutional violation is
involved in the operation of the section. Clearly the Crown, in order to
obtain a conviction, must prove care or control of the motor vehicle by the
accused at a time when he was impaired by alcohol or a drug. The mens rea of the
offence is the intention to assume care or control of the motor vehicle after
the voluntary consumption of alcohol or a drug. What then are the defences
open to the accused? It seems to me that they are that he did not have care or
control of the motor vehicle or that, if he did, he was not impaired at the
time. The accused might also seek to defend on the basis that, while he had
not consumed enough alcohol prior to assuming care or control of the motor
vehicle to result in impairment, he had consumed enough to render himself
incapable of forming the necessary intent to assume such care or control.
However, it seems to me that, if I am correct in characterizing the offence in
s. 234(1) as an offence of general intent, this defence would fail.

With
all due respect to those who think differently, I am of the view that no viable
defence to a charge under s. 234(1) is foreclosed by the section. To hold
otherwise is to say that the legislature violates theCharter if it
purports to make engaging in certain types of conduct while impaired offences
under theCriminal Code and must justify
the creation of such offences under s. 1. I cannot accept that result. I
think that Dickson C.J. was correct in indicating in Bernard that
crimes in which intoxication is made an element of the offence, i.e. part of
the actus reus, are in a different category from crimes in which
intoxication is relevant to the mental element only. I find no
unconstitutionality in the creation of the former type of offences.

In the
event, however, that I am wrong in my approach to the constitutional issue, I
would find an infringement only in cases of extreme intoxication verging on
automatism and would justify such infringement under s. 1 of theCharter for the
reasons given by my colleague. I wish, however, to add one observation.

Some
commentators have suggested that the creation of an offence of "dangerous
intoxication" would resolve the constitutional problem of intoxicated
offenders because the elements of that offence would be more in keeping with
accepted fundamental principles of criminal liability. I am not sure that such
a generalized offence would achieve the desired result. I think the courts
would still have to determine whether the denial of an accused's opportunity to
question the presence of an essential element of the offence in different
contexts was constitutional. Parliament has, in my view, attempted to resolve
the problem in s. 234 by creating the offence of care or control of a
motor vehicle while impaired. It has, in other words, criminalized the
act of becoming impaired in a particular circumstance, i.e. in the context of
having care or control of a motor vehicle. I think it was open to Parliament
to, in effect, create an offence akin to "dangerous intoxication" but
contextualized to the care or control situation. This may, indeed, be the
preferred route to follow. Impairment in different contexts poses different social
evils. In my view it is not only open to, but perhaps incumbent upon,
Parliament to take account of those differences and to fashion offences in
response to specific social needs.

For
the foregoing reasons, I would dismiss the appeal.

//La Forest
J.//

The
following are the reasons delivered by

LA FOREST J. -- I
have had the advantage of reading the reasons of my colleagues, Chief Justice
Lamer and Justices Wilson and McLachlin. I too would dismiss the appeal. I
would do so for the following reasons.

Section
234(1) of the Criminal Code, R.S.C. 1970, c.
C-34, prohibits the act of having care or control of a motor vehicle while the
perpetrator of that act is impaired by alcohol or a drug. The mens rea is the
intention to do that act, i.e., to assume care or control of the vehicle.
Judicial construction also requires that the impairment be voluntary (R. v. Toews, [1985]
2 S.C.R. 119, at p. 124). I reach my conclusion about the mens rea of the
offence as a matter of statutory interpretation, not on the basis of any
generalized doctrine of general intent. Since Parliament has made it an
offence to commit an act while impaired, it would be inconsistent, as McLachlin
J. observes, for Parliament also to have considered that impairment (including
intoxication) could be relied on by the defence.

The
question, then, is whether, in light of ss. 7 and 11(d) of theCanadian
Charter of Rights and Freedoms, it is open to Parliament to create a
criminal offence precluding reliance on intoxication. With respect to s. 11(d), I
would have thought that the constitutionality of s. 234(1), qualified as it is
by s. 237(1), had been definitively accepted in this Court's decision in R. v.
Whyte, [1988] 2 S.C.R. 3. This leaves the question whether
s. 234(1) violates s. 7. In my view, it does not. First, I recall again that
a person can only come within the ambit of s. 234(1) if his or her intoxication
is voluntary; see R. v. Toews, supra, at p.
124. It follows that s. 234(1) will only be applied where the assumption of
the care or control of a vehicle while impaired can truly be said to be the
responsibility of the accused in an ultimate sense, even if there is a question
as to whether he or she was capable, because of intoxication, of forming the
requisite intent as of the moment when care or control was actually assumed.
This assuages much of the concern I might otherwise have had as to whether a
conviction under s. 234(1) violated some principle of "fundamental
justice". The offence, as my colleague McLachlin J. notes, is in a sense
directed to control drunkenness in a dangerous setting.

Secondly,
it will seldom be the case that a person who has the care or control of a motor
vehicle will be found to be so intoxicated as to have been incapable of
satisfying the very low mens rea requirement of s. 234(1) (see R. v.
Whyte, supra, at pp. 22-27). A very low mental
element requirement is necessary if Parliament is to be able to create any
effective offences in respect of driving while under the influence of alcohol
or drugs. And since, as my colleagues have demonstrated, it is obviously in
the public interest that Parliament does create such offences, I find little
difficulty in concluding that s. 234(1) is consistent with the "principles
of fundamental justice". I would in this regard refer to what has been
said in other cases respecting the need to recognize that the "principles
of fundamental justice" encompass the public's interest, as represented by
the state, as well as the interests of the accused; see R. v.
Lyons, [1987] 2 S.C.R. 309, at pp. 327 and 329; R. v.
Beare, [1988] 2 S.C.R. 387, at pp. 403-5; my reasons in R. v.
Corbett, [1988] 1 S.C.R. 670, at p. 745 (dissenting on another
point); see also R. v. Jones, [1986] 2 S.C.R.
284, at p. 304, per La Forest J. (Dickson C.J. and Lamer J. concurring),
and my reasons in Thomson Newspapers Ltd. v. Canada (Director of
Investigation and Research, Restrictive Trade Practices Commission), [1990]
1 S.C.R. 425, at p. 539.

Interpreting
the provision as I do, I am of the view that s. 234(1) does not violate s. 7 or
s. 11(d) of theCharter. It thus becomes
unnecessary to consider s. 1 of theCharter.

//Sopinka J.//

The
reasons of Sopinka, Gonthier and McLachlin JJ. were delivered by

MCLACHLIN J. --
This case raises the question of the constitutionality of s. 234 of the Criminal
Code, R.S.C. 1970, c. C-34. Unlike my colleague, Lamer
C.J., whose reasons I have had the opportunity of reading, I am of the view
that s. 234 of the Code does not violate ss. 7 and 11(d) of theCanadian
Charter of Rights and Freedoms.

The
Issues

The
police testified that the accused was observed at the wheel of a motor vehicle
which, while apparently under his control, backed up a short distance. The
accused was inebriated at the time. The accused testified that he was so drunk
he could recall nothing of the evening's events. The question is whether his
drunkenness can serve as a defence to a charge under s. 234(1) of theCriminal
Code that he had "care or control" of a motor
vehicle while impaired.

Crown
counsel argued that drunkenness could not serve as a defence because of the
presumption created by s. 237(1)(a) of the Code. I
cannot accept this submission in view of the fact that the Crown chose not to
assert this presumption at trial, but rather chose to rely exclusively on
evidence that the accused had exercised care or control under s. 234(1)(a) of the Code. To
allow the Crown to assert the presumption on appeal would result in the accused
being deprived of the opportunity to make the full answer and defence that
could have been made if it had been raised at trial. Intention to set the
vehicle in motion is relevant to s. 237(1)(a); it is
not relevant to s. 234(1): R. v. Whyte, [1988] 2 S.C.R.
3; R. v. Toews, [1985] 2 S.C.R. 119; and Ford v. The Queen, [1982]
1 S.C.R. 231. Had s. 237(1)(a) been raised at
trial by the Crown, the accused might have chosen to adduce evidence on the
absence of intention to set the vehicle in motion. It follows that to allow
the Crown to assert the applicability of s. 237(1)(a) for
the first time during an appeal would violate the accused's s. 7 right to
a fair trial and to make a full answer and defence.

This
leaves the argument on s. 234(l). The appellant's argument has two prongs.
First, it is suggested that the offence of having care or control of a motor
vehicle while in an inebriated condition is a specific intent offence, to which
the defence of drunkenness would be available. Alternatively, the appellant
submits that if the offence is one of general intent, to which the defence of
drunkenness is not available, this violates ss. 7 and 11(d) of theCharter and is
not saved by s. 1.

In
view of my conclusion on the second issue, it is unnecessary to consider the
first, although if it were, I would agree with Lamer C.J. that the offence
would be one of general intent.

Short
Answer

It
is my conclusion that Parliament has stipulated that intoxication cannot be a
defence to a charge under s. 234(1) of the Code,
rendering irrelevant the general intent - specific intent issue. This
exclusion of intoxication as a defence does not, however, constitute a
limitation on the right of the accused to make full answer and defence under
ss. 7 and 11(d) of theCharter, since the mens rea of the
offence lies not in the intention to assume care or control of a motor vehicle,
but in voluntarily becoming intoxicated.

Analysis

Whether the Exclusion of Consideration of Intoxication on the Issue of
the Mental Element of a Crime Offends ss. 7 or 11(d) of the Charter?

(a)
The Relevant Charter Provisions

This
case raises the question of the relationship of ss. 7 and 11(d) of theCharter.
Section 7 provides that a person shall not be deprived of life, liberty or
security of the person except in accordance with the "principles of
fundamental justice". These "principles" include the
requirement that a guilty mind be proven as an essential element of the
offence: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R.
486. Section 11(d) presumes an accused to be innocent "until proven
guilty according to law", thereby requiring the trier of fact to be
satisfied as to the existence of all of the essential elements of the offence.
These essential elements include not only those set out by the Legislature in
the provision creating the offence but also those required by s. 7 of theCharter: R. v.
Vaillancourt, [1987] 2 S.C.R. 636. The argument that convictions
should not be possible where there is doubt as to the mental element of an
offence can be cast under both ss. 7 and 11(d). This
conjunction is not remarkable, given the close relationship between the broad
guarantees in s. 7 and the more specific guarantees which follow it: Re B.C.
Motor Vehicle Act, supra.

There
is no doubt that the charge puts in question the accused's liberty and security
of person. The real question is whether the unavailability of the defence of
drunkenness deprives the accused of "liberty and security of the
person" in a way which violates "the principles of fundamental
justice", and hence violates the presumption of innocence.

(b)
Definition of the Problem

The
fundamental principle raised by my colleague, Lamer C.J., is the right of a
person not to be convicted for a crime unless he or she intended to commit the
crime. This principle is one of long‑standing; it has long been
recognized that it would be contrary to justice to convict an individual of a
criminal offence in the absence of proof of the element of mens rea.
Recognition of this principle was the basis of this Court's decision in Vaillancourt, supra.

Lamer
C.J. sees the issue in this case as a conflict between the fundamental
principle that one cannot be convicted of a crime without a guilty mind, and
the judge‑made rule that voluntary intoxication which may

in fact
affect that guilty mind, can be considered only in crimes of "specific
intent".

I
view the issue differently. As I see it, this case does not raise the
constitutionality of the judge‑made rule making evidence of impairment
irrelevant on offences of "general intent". Rather, the only
question before the Court is the constitutionality of s. 234(1) of theCriminal
Code ‑‑ the offence commonly referred to as
impaired driving. I read this section as excluding the defence of impairment.
The judge‑made "general intent" rule never comes into play
because Parliament has enacted its own specific rule on the availability of the
defence of impairment ‑‑ a rule limited to impaired driving.
Therefore, as I view the case, the only question is whether Parliament's
legislative exclusion of impairment as a defence in the case of impaired
driving violates theCharter.

My
conclusion that Parliament has specified that impairment cannot be raised as a
defence in the case of impaired driving is based on my understanding of the
offence defined by s. 234(1) of theCriminal Code.

The
argument can be summarized as follows: s. 234(1) makes it an offence to drive
or to assume care or control of a motor vehicle while impaired by alcohol or a
drug. Impairment being an essential element of the crime, it is illogical and
contradictory to suppose that Parliament intended that its express aim of
making such impairment criminal should be

defeated
by an unexpressed implication of law that the same impairment may provide an
effective defence.

Our
criminal law is founded on the concept that the Crown must prove all elements
of an offence beyond a reasonable doubt. The accused, while he or she need
prove nothing, may raise defences ‑‑ circumstances which whether
proved by the Crown or by the accused, cast a reasonable doubt on whether the
offence is established. The essence of a defence such as that raised in this
case is that it negatives an element of the offence. It says that what is
required to prove the offence has not been established. Because a defence is
the obverse or negative of an aspect of the offence, it is impossible to speak
of a defence which also constitutes an element of the offence. To do so is to
posit an inherently contradictory offence and to grossly distort what is meant
by "offence" and "defence" in criminal law.

The
offence of impaired driving or impaired care or control of a motor vehicle
postulates impairment as one of its essential elements. The Crown must prove
impairment beyond a reasonable doubt. It is illogical to suppose that the same
impairment which constitutes an essential element of the offence can serve as a
defence. Parliament has said that it is a crime to be impaired and drive or
assume care or control of a motor vehicle. How can Parliament be taken to have
said in the same metaphorical breath that it may not be a crime (the effect of
the defence) to drive or assume care or control of a motor vehicle, by reason
of the fact that one is impaired? Where impairment is not an essential element
of an offence, there is no contradiction involved in saying that the intent
necessary for criminal culpability may not have been established beyond a
reasonable doubt because of impairment. Where, on the other hand, Parliament
has posited impairment as an essential element of the offence, it must be taken
to have eliminated the availability of a defence of lack of intent based on the
same impairment which it has made culpable.

Failure
to recognize the inherent contradiction involved in the proposition that an
essential element of an offence may also be a defence leads to absurdity. It
leads, for example, to the conclusion that the more impaired a person is, the
more likely he or she is to be acquitted of the offence of impaired driving.
That a person should be too impaired to be convicted of impaired driving
strikes most people as ridiculous. It represents, in short, a contradiction in
terms.

Failure
to recognize the inherent contradiction involved in saying that a central
element of an offence may also serve as a defence also contradicts our
fundamental notions of the nature of a criminal trial. It puts the Crown in
the position of proving both the offence and the defence. On the other side of
the contest, it involves contradictory defences. Lack of impairment is clearly
a defence, but so too is impairment.

I
conclude that to posit a defence of impairment to a charge under s. 234(l)
of theCriminal Code is to posit an internally and impossibly inconsistent
offence of a sort not known to criminal law. Parliament not having indicated
such a defence is available, it must be taken as having ruled it out since it
cannot logically co‑exist with the offence. As Dickson C.J. stated
in R. v. Whyte, supra, at p. 22: "The very fact that
consumption of alcohol is an element of these offences renders problematic the
element of intention." In view of this observation, it is not surprising
that in R. v. Bernard, [1988] 2 S.C.R. 833, Dickson C.J. (dissenting) explicitly
excluded offences of which intoxication was an element from his reasons holding
unconstitutional the common law rule prohibiting consideration of impairment
except on offences of specific intent.

My
aim to this point has been to define the offence of impaired driving or care or
control of a motor vehicle as I think Parliament must have intended it to be
defined, to the end of showing that the issue in this case is not the general
one of the constitutionality of the elimination of the defence of impairment
from all crimes save those of specific intent, but rather the
constitutionality of Parliament legislatively precluding a defence of
impairment in the case of a crime which posits impairment as one of its
essential elements. The question is whether the creation of such an
offence violates theCharter because, by its very nature, it
precludes the defence of impairment and thus may permit conviction where there
is a reasonable doubt as to an accused's intention to drive or assume care or
control.

The
problem of the intoxicated offender, viewed generally, involves two opposing
values, both of which have been recognized by our system of justice ‑‑
the right not to be convicted absent proof of intention to commit the crime,
and the public interest in not excusing persons who commit crimes by reason of
voluntary drunkenness from the criminal consequences of their acts. In
enacting s. 234(1) of the Code, Parliament has made impairment
itself an element of the offence notwithstanding the possible absence of
criminal intent, thus giving paramountcy to the public interest.

There
are three possible legal solutions to the problem of the intoxicated offender:
see C. N. Mitchell, "The Intoxicated Offender ‑‑ Refuting
the Legal and Medical Myths" (1988), 11 Int. J.L. Psychiatry 77, at
pp. 77‑78. The first is the approach presently employed in Canada,
England and the United States under which the law denies, in whole or in part,
a mitigating role to intoxication even if the mental element of an offence may
be absent because of voluntary alcohol or drug use.

The
second avenue is to permit evidence of intoxication to be weighed with other
evidence in determining whether the intoxication actually eliminated or
compromised the required mental element. This is the approach which has been
adopted in Australia and New Zealand and advocated in this Court in dissent by
Dickson J. in Leary v. The Queen, [1978]
1 S.C.R. 29, and by Dickson C.J., Lamer J. and La Forest J. in Bernard,
supra.

The
third alternative referred to in the literature is legislative. It is often
seen as involving enactment of legislation to permit consideration of
intoxication on the issue of criminal intent, while creating a new offence in
the nature of "dangerous intoxication". In England this approach was
recommended in the Butler Report, the Report of the
Committee on Mentally Abnormal Offenders (Cmnd 6244
(1975)), and by Professors Glanville Williams and J. C. Smith in their minority
recommendations of the Criminal Law Revision Committee Fourteenth Report:
Offences against the Person (Cmnd 7844 (1980)). An offence of this type has been
in force for many years in s. 323(a)(i) of the German Criminal Code (Strafgesetzbuch): see
J. Herrmann, "Causing the Conditions of One's Own Defense: The Multifaceted
Approach of German Law," [1986] B.Y.U. L. Rev. 747.
In the common law jurisdiction of Bophuthatswana the Criminal Law
Amendment Act 14 of 1984 in s. 1, discussed in A. St. Q. Skeen,
"Intoxication is No Longer a Complete Defence in Bophuthatswana: Will
South Africa Follow Suit" (1984), 101 S.A.L.J. 707,
followed the German provision fairly closely and by enacting the Criminal
Law Amendment Act 1 of 1988 the South African legislature followed suit four years
later: see A. Paizes, "Intoxication Through the Looking-Glass"
(1988), 105 S.A.L.J. 776.

A
number of proposals for reform have suggested that Canada should employ a
dangerous intoxication offence to resolve the anomalies which exist in the
present approach to the use of drunkenness as a defence: see P. B. Schabas,
"Intoxication and Culpability: Towards an Offence of Criminal
Intoxication" (1984), 42 U.T. Fac. L. Rev. 147,
T. Quigley, "Reform of the Intoxication Defence" (1987), 33 McGill
L.J. 1.

In
the case at bar, we are concerned with a legislative attempt to deal with a
specific form of dangerous impairment. Because Parliament has acted, options
one and two are not available. The legislative treatment is confined to the
offence of impaired driving, and it does not posit recklessness as an element.
Nevertheless, within the limited scope of the provision, s. 234 may be viewed
as an attempt by Parliament to create a type of "drunk and dangerous"
offence somewhat akin to that proposed by the third option. The next question is
whether this attempt runs afoul of ss. 7 and 11(d) of theCharter.

If
the mental element of an offence is compatible with the unavailability of the
defence of impairment, then the absence of that defence constitutes no
violation of theCharter. On the other hand, if the mental
element of the offence is one to which the defence of impairment might be
relevant, the absence of that defence will constitute a violation of theCharter. The
question is which of these two categories s. 234(1) falls into.

In R. v. King, [1962]
S.C.R. 746, it was held that the mental element involved in the offence of
impaired driving was voluntary intoxication. It was this that provided the
guilty mind fundamental to the offence. On this view, the unavailability of
drunkenness as a defence cannot constitute a violation of the accused's right
to make full answer and defence. Even if the accused is too drunk to know
that he or she is assuming care and control of the motor vehicle, that does not
matter, since the mental element of the offence lies in voluntarily becoming
intoxicated. This interpretation recognizes that intoxication is excluded as a
defence to impaired driving since it is the very gravamen of the offence.

It
is argued, however, that this state of the law was changed by this Court's
decision in Toews, supra. I cannot accept
that submission. Toews did not hold that voluntary
intoxication might serve as a defence to the offence of impaired driving. Toews held
only that in circumstances where an accused was found sleeping in a sleeping
bag on the front seat of the vehicle with his head on the passenger side of the
vehicle, "[i]t has not been shown ... that the [accused] performed any
acts of care or control and he has therefore not performed the actus
reus" (p. 127). The facts of Toews require
no broader interpretation than this and logic, in my view, precludes it, given
that impairment is a specific element of the offence of s. 234 of theCriminal
Code. I cannot conclude that the Court in Toews
intended to alter the long-standing principle that the mental element of the
offence of s. 234 of the Code lies in voluntarily becoming
intoxicated -- not in the knowing assumption of care and control of a motor
vehicle which is capable of being negated by the very impairment which is the
gravamen of the offence.

For
these reasons I conclude that the accused's rights under ss. 7 and 11(d) of theCharter were
not infringed.

Conclusion

I
would dismiss the appeal.

Appeal
dismissed.

Solicitors
for the appellant: Ruby & Edwardh, Toronto.

Solicitor
for the respondent: The Attorney General for Ontario, Toronto.

* Chief Justice at the time of
judgment.

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